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they can be material is that a belief in their being true is likely to have led to the making of the contract。
It is not then true； as it is sometimes said； that the law does not concern itself with the motives for making contracts。 On the contrary； the whole scope of fraud outside the contract is the creation of false motives and the removal of true ones。 And this consideration will afford a reasonable test of the cases in which fraud will warrant rescission。 It is said that a fraudulent representation must be material to have that effect。 But how are we to decide whether it is material or not？ If the above argument is correct； it must be by an appeal to ordinary experience to decide whether a belief that the fact was as represented would naturally have led to； or a contrary belief would naturally have prevented； the making of the contract。
If the belief would not naturally have had such an effect； either in general or under the known circumstances of the particular case； the fraud is immaterial。 If a man is induced to contract with another by a fraudulent representation of the latter that he is a great…grandson of Thomas Jefferson； I do not suppose that the contract would be voidable unless the contractee knew that； for special reasons； his lie would tend to bring the contract about。
The conditions or grounds for avoiding a contract which have been dealt with thus far are conditions concerning the conduct of the parties outside of the itself。 ＇327＇ Still confining myself to conditions arising by construction of law；that is to say； not directly and in terms attached to a promise by the literal meaning of the words in which it is expressed；I now come to those which concern facts to which the contract does in some way refer。
Such conditions may be found in contracts where the promise is only on one side。 It has been said that where the contract is unilateral； and its language therefore is all that of the promisor； clauses in his favor will be construed as conditions more readily than the same words in a bilateral contract； indeed； that they must be so construed； because； if they do not create a condition； they do him no good； since ex hypothesi they are not promises by the other party。 /1/ How far this ingenious suggestion has had a practical effect on doctrine may perhaps be doubted。
But it will be enough for the purposes of this general survey to deal with bilateral contracts； where there are undertakings on both sides； and where the condition implied in favor of one party is that the other shall make good what he on his part has undertaken。
The undertakings of a contract may be for the existence of a fact in the present or in the future。 They can be promises only in the latter case； but in the former； they be equally essential terms in the bargain。
Here again we come on the law of representations； but in a new phase。 Being a part of the contract； it is always possible that their truth should make a condition of the contract wholly irrespective of any question of fraud。 And it often is so in fact。 It is not； however； every representation embodied in the words used on one side which will ＇328＇ make a condition in favor of the other party。 Suppose A agrees to sell； and B agrees to buy； 〃A's seven…year…old sorrel horse Eclipse； now in the possession of B on trial；〃 and in fact the horse is chestnut…colored； not sorrel。 I do not suppose that B could refuse to pay for the horse on that ground。 If the law were so foolish as to aim at merely formal consistency； it might indeed be said that there was as absolute a repugnancy between the different terms of this contract as in the ease of an agreement to sell certain barrels of mackerel； where the barrels turned out to contain salt。 If this view were adopted； there would not be a contract subject to a condition； there would be no contract at all。 But in truth there is a contract； and there is not even a condition。 As has been said already； it is not every repugnancy that makes a contract void； and it is not every failure in the terms of the counter undertaking that makes it voidable。 Here it plainly appears that the buyer knows exactly what he is going to get； and therefore that the mistake of color has no bearing on the bargain。 /1/
If； on the other hand； a contract contained a representation which was fraudulent； and which misled the party to whom it was made； the contract would be voidable on the same principles as if the representation had been made beforehand。 But words of description in a contract are very frequently held to amount to what is sometimes called a warranty； irrespective of fraud。 Whether they do so or not is a question to be determined by the court on grounds of common sense； looking to the meaning of the words； the importance in the transaction of the facts ＇329＇ which the words convey； and so forth。 But when words of description are determined to be a warranty； the meaning of the decision is not merely that the party using them binds himself to answer for their truth； but that their truth is a condition of the contract。
For instance； in a leading case /1/ the agreement was that the plaintiff's ship； then in the port of Amsterdam； should； with all possible despatch； proceed direct to Newport； England； and there load a cargo of coals for Hong Kong。 At the date of the charter…party the vessel was not in Amsterdam； but she arrived there four days later。 The plaintiff had notice that the defendant considered time important。 It was held that the presence of the vessel in the port of Amsterdam at the date of the contract was a condition； the breach of which entitled the defendant to refuse to load； and to rescind the contract。 If the view were adopted that a condition must be a future event； and that a promise purporting to be conditional on a past or present event is either absolute or no promise at all； it would follow that in this case the defendant had never made a promise。 /2/ He had only promised if circumstances existed which did not exist。 I have already stated my objections to this way of looking at such cases； /2/ and will only add that the courts； so far as I am aware； do not sanction it； and certainly did not in this instance。
There is another ground for holding the charter…party void and no contract； instead of regarding it as only voidable； which is equally against authority； which nevertheless I have never been able to answer wholly to my satisfaction。 In the case put； the representation of the lessor of the vessel ＇330＇ concerned the vessel itself； and therefore entered into the description of the thing the lessee agreed to take。 I do not quite see why there is not as fatal a repugnancy between the different terms of this contract as was found in that for the sale of the barrels of salt described as containing mackerel。 Why is the repugnancy between the two terms；first； that the thing sold is the contents of these barrels； and； second； that it is mackerelfatal to the existence of a contract？ It is because each of those terms goes to the very root and essence of the contract； /1/because to compel the buyer to take something answering to one； but not to the other requirement； would be holding him to do a substantially different thing from what he promised； and because a promise to take one and the same thing answering to both requirements is therefore contradictory in a substantial matter。 It has been seen that the law does not go on any merely logical ground； and does not hold that every slight repugnancy will make a contract even voidable。 But； on the other hand； when the repugnancy is between terms which are both essential； it is fatal to the very existence of the contract。 How then do we decide whether a given term is essential？ Surely the best way of finding out is by seeing how the parties have dealt with it。 For want of any expression on their part we may refer to the speech and dealings of every day； /2/ and say that； if its absence would make the subject…matter a different thing； its presence is essential to the existence of the agreement。 But the parties may agree that anything； however trifling； shall be essential； as well ＇331＇ as that anything； however important； shall not be； and if that essential is part of the contract description of a specific thing which is also identified by reference to the senses； how can there be a contract in its absence any more than if the thing is in popular speech different in kind from its description？ The qualities that make sameness or difference of kind for the purposes of a contract are not determined by Agassiz or Darwin； or by the public at large； but by the will of the parties； which decides that for their purposes the characteristics insisted on are such and such。 /1/1 Now； if this be true； what evidence can there be that a certain requirement is essential； that without it the subject…matter will be different in kind from the description； better than that one party has required and the other given a warranty of its presence？ Yet the contract description of the specific vessel as now in the port of Amsterdam； although held to be an implied warranty； does not seem to have been regarded as making the contract repugnant and void； but only as giving the defendant the option of avoiding it。 /2